ed as imported by our ancestors, with the whole body *81 of the common and statute law then existing, and applicable to our local circumstances. As far as the provisions of that statute are received as law in this country, the recovery in the action of waste, for waste done or permitted, is the place wasted, and treble damages; but the writ of waste has gone out of use, and a special action on the case, in the nature of waste, is the substitute; and this latter action, which has superseded the common law remedy, relieves the tenant from the penal consequences of waste under the statute of Gloucester. The plaintiff, in this action upon the case, recovers no more than the actual damages which the premises have sustained.a

Under the head of permissive waste, the tenant is answerable, if the house or other buildings on the premises be destroyed by fire, through his carelessness or negligence; and he must rebuild, in a convenient time, at his own expense.b

ment, precision and perspicuity, that reflect lustre on the profession in this country. The Supreme Court of Massachusetts decided, in Padelford v. Padelford, (7 Pick. Rep. 152,) the question of the forfeiture for waste on estates in dower, in accordance with the opinion of Mr. Dane. But afterwards, in Sackett v. Sackett, (8 Pick. Rep. 309,) the question was much more elaborately discussed and considered; and the conclusion was, that the rule prescribed by the statute of Gloucester was brought over from England by the colonists, when they first emigrated, as part of the common law.

The statute of Gloucester is not law in the state of Maine, and an action of waste cannot be maintained in that state against a tenant in dower, but it is suggested that an action on the case, in the nature of waste, may be maintained by the reversioner, against a tenant in dower, for actual waste. Smith v. Follansbee, 13 Maine Rep. 273.

Parker, J., in Linton v. Wilson, Kerr's N. B. Rep. 239, 240. By the NewYork Revised Statutes, vol. ii. 334-338. 343, the writ of waste, as a real action, is essentially abolished; but an action of waste is substituted, in which the first process by summons is given; and the judgment to be rendered is, that the plaintiff recover the place wasted and treble damages. If the action be brought by a joint tenant, or tenant in common, against his co-tenant; the plaintiff, if he recover, may, at his election, take judgment for the treble damages, or have partition of the premises, with a deduction of the damages from the share of the defendant. In Rhode Island and Ohio, the action of waste is still in use, for the recovery of the freehold wasted. Loomis v. Wilbur, 5 Mason, 13. probably, the general law in this country. c. 27, abolished the writ of waste, it is now wasted cannot be recovered.

Statutes of Ohio, 1831, 252. This is, But as the statute of 3 and 4 Wm. IV., considered in England that the place

Lord Coke says, that burning the house by negligence or mischance, is waste;

The statute of 6 Anne, c. 31, guarded the tenant *82 *from the consequences of accidental misfortune of that kind, by declaring, that no suit should be brought against any person in whose house or chamber any fire should accidentally begin, nor any recompense be made by such person for any damage suffered or occasioned thereby. Until this statute, tenants by the courtesy and in dower, were responsible, at common law, for accidental fire; and tenants for life and years, created by the act of the parties, were responsible, also, under the statute of Gloucester, as for permissive waste.a (1) There does not appear to have been any question raised, and judicially decided, in this country, respecting the tenant's responsibility for accidental fires, as coming under the head of this species of waste. I am not aware that the statute of Anne has, except in one instance, been formally adopted in any of the states. It was intimated, upon the argument in the case of White v. Wagner, that the question had not been decided; and conflicting suggestions were made by counsel. Perhaps the universal silence in our courts. upon the subject of any such responsibility of the tenant for accidental fires, is presumptive evidence that the doctrine of permissive waste has never been introduced, and carried to that extent, in the common law jurisprudence of the United States.d

and Lord Hardwicke speaks generally, that the destruction of the house by fire is waste, and the tenant must rebuild. Co. Litt. 53. b. 1 Ves. 462.

Harg. note 377. to Co. Litt. lib. 1. A tenant from year to year is not liable for permissive waste, nor for the wear and tear of the premises. Torriano v. Young, 6 Carr. & Payne, 8.

b The statute was adopted in New-Jersey, in 1795. Elmer's Digest, 593.

• 4 Harr. & Johns. 381-385.

d In covenants on the part of the tenant to pay rent, he is bound to pay, though the premises be accidentally destroyed by fire. See supra, vol. iii. 468. A tenant from year to year, according to the case of Izon v. Gorton, 5 Bingham's N. C. Rep. 501, is liable for use and occupation, though the premises be destroyed by fire.

A valuable Treatise on the Law of Dilapidations and Nuisances, by David Gibbons, Esq., was published in London, 1838, in which waste of every description by tenants for life and for years; by mortgagor and mortgagee; by joint-tenants and tenants in common; and in which dilapidations of party-walls, fences, highways, bridges and sewers, are treated at large with learning and accuracy.

(1) In Virginia, money received on insurance of a building in which there is a life estate, is to be applied to the repairing of the building. Brough v. Higgins, 2 Gratt. R. 408.

Estates for life were, by the common law, liable to forfeiture, not only for waste, but by alienation in fee. Such an alienation, according to the law of feuds, amounted to a renunciation of the feudal relation, and worked a forfeiture of the vassal's estate to the person entitled to the inheritance in reversion or remainder.a Alienation by feoffment, with livery of seisin, or by matter of record, as by fine or recovery, of a greater estate than the tenant for life was entitled *83 to, by divesting the seisin, and turning the estate of the rightful owner into a right of entry, operated as a forfeiture of the life estate, unless the person in remainder or reversion. was a party to the assurance. But an alienation for the life of the tenant himself did not work any wrong; and, therefore, says Lord Coke, it was not within the statute of Gloucester. So, a mere grant or release by the tenant for life, passed, at common law, only what he might lawfully grant. In Massachusetts, Connecticut, New-York, Pennsylvania and Kentucky, this feudal notion of forfeiture is expressly renounced, and the doctrine placed upon just and reasonable grounds. Any conveyance by a tenant for life, or years, of a greater

Nihil de jure facere potest quis quod vertat ad exhæredationem Domini sui; si super hoc convictus fuerit fœdum de jure amittet. Glanville, lib. 9. c. 1. Litt. sec. 415. 2 Blacks. Com. 274.

b Co. Litt. 251. b. 252. a. 356. a. 2 Inst. 309. Statute of Gloucester, 6 Edw. I. c. 7. Preston on Abstracts of Title, vol. i. 352-356. In Sir William Pelham's Case, 1 Co. 14. b, it was adjudged, that if a tenant for life conveyed in fee, by bargain and sale, and then suffered a common recovery, he forfeited his life estate. But in Smith v. Clyfford, 1 Term Rep. 738, it was held, that the estate of a tenant for life was not forfeited by suffering a recovery. Mr. Preston thinks the elder case the better decision and authority, (1 Preston on Convey. 202;) but Mr. Ram, in his Outline of the Law of Tenure and Tenancy, 125-140, has discussed this point, and examined those authorities, with much ability; and he holds the latter decisions to be sound, on the ground that the recovery, being absolutely void, was harmless. We, in this country, have very little concern with such questions; but this instance strikingly illustrates the matchless character of the English jurisprudence for stability, and the spirit which sustains it. Here were two cases, at the distance of two centuries apart, on an abstruse and technical point of hard law; and the attention of two learned lawyers is immediately attracted by the apparent contrariety between them. The one justifies the latter case, by showing that it went on new ground, furnished by the statute of 14 Eliz., subsequent to the first case; whereas, the other, not being able to reconcile the cases on principle, condemns the latter decision with unceremonious and blunt severity.

• 2 Inst. 309.

estate than he possessed, or could lawfully convey, *84 passes *only the title and estate which the tenant could lawfully grant. It is, therefore, an innocent conveyance, whatever the form of the conveyance may be, and produces no forfeiture of the particular estate. It does not, like a feoffment with livery at common law, ransack the whole estate, and extinguish every right and power connected with it.

The same conclusion must follow from the general provision in the statute of Virginia, of December, 1783, and from the forms of conveyance in use in other states. A conveyance in fee by a tenant for life, by bargain and sale, or by lease and release, does not work a discontinuance. Conveyances. under the Statute of Uses are innocent conveyances, since they operate only to the extent of the grantor's right, and occasion no forfeiture; though, if a general warranty be annexed to these conveyances, it would, at common law, work a discontinuance, when the warranty descends upon him who has the right to the lands. We have never adopted, in this country, the common law conveyance by feoffment and livery, and we rarely use that by fine, or common recovery, or any other than the conveyance by lease and release, or, more commonly, by deed of bargain and sale. In New-Jersey, by an act in 1798, alienations by the husband of the wife's lands or of his courtesy, or by a dowress, having an estate in dower, or other estate for life, and whether made with or without warranty, do not produce any prejudice to the persons entitled to the inheritance, but the dowress forfeits her particular estate. If, however, there be, in any state, a forfeiture of the life estate by the act of the tenant for life, the party entitled to enter by reason of the forfeiture, is not bound to enter, and may wait until the natural termination of the life estate.c

a New-York Revised Statutes, vol. i. 739. sec. 143. 145.

Massachusetts Revised

Statutes, 1835, part 2. c. 59. sec. 6. M'Kee v. Prout, Dallas, 486. 11 Conn.

Rep. 557. 1 B. Monroe's Ken. Rep. 94.

b Co. Litt. 329. a. Gilbert on Tenures, tit. Discontinuance, 112.

• Elmer's Dig. 77. Doe v. Danvers, 7 East's Rep. 321. Wells v. Prince, 9 Mass. Rep. 508. Jackson v. Mancius, 2 Wendell, 357. By statute, in Kentucky, in 1798, no conveyance by the husband of the wife's estate works a discontinuance thereof; nor does any alienation pass a greater estate than might lawfully be conveyed, or bar the residue of the estate, except that, if the alienation be with warranty, the heirs will be barred to the value of the heritage descended. 3 Dana's Ken. Rep. 291, 292.

LECTURE LVI.

OF ESTATES FOR YEARS, AT WILL AND AT SUFFERANCE.

(1.) Of estates for years.

A lease for years is a contract for the possession and profits of land for a determinate period, with the recompense of rent; and it is deemed an estate for years, though the number of years should exceed the ordinary limit of human life. An estate for life is a higher and greater estate than a lease for years, notwithstanding the lease, according to Sir Edward Coke, should be for a thousand years or more; and if the lease be made for a less time than a single year, the lessee is still ranked among tenants for years.b

In the earlier periods of English history, leases for years were held by a very precarious tenure. The possession of the lessee was held to be the possession of the owner of the freehold, and the term was liable to be defeated at the pleasure of the tenant of the freehold, by his suffering a common recovery. In the reign of Henry VI., it would seem that the law gave to the lessee, who was unduly evicted, the right to recover, not only damages for the loss of the possession, but the possession itself. But the interest of the lessee was still insecure, until the statute of 21 *Hen. VIII. *86 c. 15, removed the doubts arising from the conflicting authorities, and enabled the lessee for years to falsify a recovery suffered to his prejudice. A term was now a certain and permanent interest, and long terms became common,

Co. Litt. 46. a. See supra, vol. ii. p. 342.

b Litt. sec. 67.

e Co. Litt. 46. a. Lord Parker, in Theobalds v. Duffoy, 9 Mod. Rep. 102.

F. N. B. 198, cites 19 Hen. VI.

• See a list of the authorities, pro and con, taken principally from the Year Books, cited in the margin to Co. Litt. 46. a.